Right to Die (or Live): Cases

“Right to Live” appeal dismissed as moot (N.J. Super.)
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Rueben Betancourt underwent surgery to remove a malignant tumor from his thymus gland. Although the surgery went well, during recovery, the ventilation tube supplying him with oxygen was dislodged and he developed anoxic encephalopathy which left him in a persistent vegetative state and with other complications. Over his family’s objections, the hospital determined that continued treatment was futile and entered a DNR in Rueben’s chart. The hospital then took action to terminate treatment. Rueben’s daughter sought and secured an order enjoining the hospital from terminating treatment and requiring reinstatement of his treatment. The hospital appealed, but Rueben died on May 29, 2009, about 3 months after the order was entered. Plaintiff sought to dismiss the hospital’s appeal, arguing that the case was now moot. The hospital objected, arguing that the issues presented were of significant importance and were likely to recur, particularly in light of future rationing of health care. The court rejected Plaintiff’s argument that this “right to live” case is distinguished from “right to die” cases cited by the parties. Those cases did not base their decision on which party sought to withdraw life support. Rather, they identified the matter of public importance as being whether life-sustaining treatment should be withdrawn from an incompetent patient. Instead, the reasons why this case did not merit continuation were (1) the underlying allegations of medical malpractice which contributed to the poor relationship between the parties and (2) an incomplete record that could cause any decision reached by the court to extend to patients who, although incompetent, were medically stable. The “thin” and disputed record was a significant factor in the court’s decision to dismiss the appeal.
Betancourt v. Trinitas Hospital, 2010 N.J. Super. LEXIS 168 (8/13/2010)

Sovereign immunity bars action to permit physician-assisted suicide (Conn. Super.)
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Gary Blick and Roanld Levine, two Connecticut physicians filed an action for declaratory and injunctive relief, asking the court to prohibit the State from prosecuting them for manslaughter if they prescribed lethal medications to competent, terminally ill patients to enable those patients to kill themselves. The decision recounted facts relating to various patients who suffered from conditions causing excruciating pain, which were terminal. In each of those cases, the patients, who were competent, sought to die with dignity. Blick and Levine argued that a 1971 statute criminalized all assisted suicides. The court’s decision noted that, while several legislative attempts had been made to amend the statute and permit physician assisted suicide, none had passed. The plaintiffs sought a ruling that physicians who assist competent patients in finding an alternative to unbearable pain during the dying process is not “suicide” within the meaning of the criminal statute. In rejecting plaintiffs’ arguments and dismissing the case, the trial court found that a declaration that physician assisted suicide is legal would deprive the legislature of its ability to weigh competing public policy concerns and would leave physician-assisted suicide to the discretion of individual physicians without any legislatively imposed standards or controls. The trial court then dismissed the case, finding that it was barred by sovereign immunity.
Blick v. Connecticut, Case No. CV-09-5033392, Superior Court of Hartford Connecticut (6/1/2010)

Availability of public benefits did not negate wrongful life claim filed by parents of special needs child (NY App Div. 3rd)
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Plaintiffs’ son was born with Joubert Syndrome in 2003. Plaintiffs filed a malpractice case arguing negligent failure to detect their son’s condition; they claimed they would have terminated the pregnancy if the condition had been detected. The Defendants countered, arguing the parents had no cognizable injury since Plaintiffs’ son was on public benefits under both Medicaid and IDEA. The trial court agreed and dismissed the case. On appeal, the trial court was reversed. While the collateral source rule may apply after trial in reducing any award of damages, it does not obviate Plaintiffs’ injury. Further, the evidence indicated that public benefits supply a “basic floor” and that additional services, not covered by benefits, may be required to meet the needs of Plaintiffs’ son.
Foote v. Albany Medical Center, 2009 NY Slip Op 8923, Appeal No. 506577 (12/3/2009)

Court construes Uniform Act on Rights of the Terminally Ill (NV)
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In 2002, Avis Maxey, who was 72 years old, ingested approximately 200 prescription pills in an apparent suicide attempt. Her ex-husband, Theodore, with whom she resided, delayed calling an ambulance because he believed she wanted to kill herself. When the paramedics arrived, they nonetheless attempted to resuscitate Avis. At the hospital, Theodore signed papers listing Avis as a Class III patient, meaning her treatment would be limited to comfort care without prolonging her life. A physician, Dr. Darden, signed the order and later extubated Avis on Theodore’s request. Avis was given an oxygen mask, but that was removed 10 minutes later “per husband’s request.” Over the next three hours Avis’s respirations decreased. The shift changed and a different doctor ordered a morphine drip. Avis died soon thereafter, approximately four hours and twenty minutes after admission to the hospital.

Later, Avis’s family filed a medical malpractice action. The defendants filed a motion for summary judgment, contending they complied with a valid surrogate consent. The trial court granted summary judgment. On appeal, the court found that Avis had not executed a declaration concerning her end-of-life wishes and had not designated a health care decision-maker. Therefore, the case turned on whether her physician received valid surrogate consent before withholding treatment.

The parties first differed over whether Dr. Darden was an attending physician within the meaning of the statute. If he was, then he had power to withhold treatment and, if not, then his conduct was improper. The court found that Dr. Darden was the “attending physician,” finding that the Act refers to the physician “who has primary responsibility for the patient’s treatment and care at the time when administering life-sustaining treatment becomes an issue.” Nonetheless, Dr. Darden was not entitled to summary judgment based on the Act’s immunity provisions because a genuine issue of material fact remained concerning the attestation of Theodore’s surrogate consent (the Act required two witnesses and only Dr. Darden was the only signing witness) and because a genuine issue remained concerning whether Dr. Darden properly classified Avis as terminally ill. Summary judgment was reversed.
Estate of Maxey v. Darden, No. 47737, Supreme Court of Nevada (July 3, 2008)

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